The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- Amrutlal Someshwar
Joshi, the petitioner in this review petition is the appellant in Criminal
Appeal No. 87 of 1994 which has been dismissed by us on 10-8-1994. The appellant has been convicted by the trial court
under Section 302 IPC and sentenced to death.

The
same has been confirmed by the High Court. We heard Criminal Appeal No. 87 of
1994 filed by him in this Court at length and ultimately dismissed the same
holding that the appellant killed three persons including a child aged about
three years in a brutal and diabolical manner with a view to commit robbery. We
also held that the motive was heinous and the crime committed was a
cold-blooded, brutal and diabolical one and that his case fell within the
category of "rarest of rare cases". Accordingly we confirmed the
judgments of the courts below awarding death sentence to the petitioner herein.
Hence the present review petition has been filed seeking review of our judgment
dated 10-8-1994 in Criminal Appeal No. 87 of 1994.

2. In
the meanwhile a separate petition dated 22-8-1994 to review the judgment in
Criminal Appeal No. 87 of 1994 sent by the convicted accused from jail is
received which is not separately numbered. In this review petition as well as
the regular review petition filed through counsel, some points regarding
appreciation of evidence by this Court have been raised. We have examined these
points and we see no merit in any of them. It may be mentioned here that all
the relevant evidence has been considered in detail and thereafter we reached
the conclusion that the said items of evidence considered by us by themselves
are sufficient to bring home the guilt to the accused and we accordingly
confirmed the concurrent findings of the courts below.

There
is no need to consider each one of them again in these review petitions. We may
incidentally mention here that in the petition sent from jail the convicted
accused has given his age as 25 years. He, however, has not raised any point
regarding his age stating that it should be taken as a mitigating circumstance.
Learned counsel for the petitioner, however, mainly concentrated on the age of
the convicted accused on the date of commission 202 of the offence in support
of his plea that the young age should be treated as a mitigating circumstance
in the matter of awarding death sentence.

3.
Since this is a case of death sentence, we have heard the learned counsel for
the petitioner as well as learned counsel for the State. Learned counsel for the
petitioner submitted that the petitioner on the date of occurrence i.e.
4-8-1987 was only 17 years old and therefore having regard to his age, death
sentence ought not to have been awarded.

In
support of this submission strong reliance is placed on a judgment of this
Court in Harnam v. State of U. PI, which was followed in Raisul v. State of U.
p 2 In Harnam case', Justice P.N. Bhagwati, as he then was, having held that
the crime committed by the appellant was most reprehensible and heinous
disclosing brutality and callousness to human life, yet having noted that the
appellant was of 16 years of age at the time of commission of crime, however,
held that a murderer who is below 18 years of age at the time of commission of
the offence should be considered to be "too young" and that "he
would be entitled to the clemency of penal justice and it would not be
appropriate to impose the extreme penalty of death on him". In Raisul
case2, Justice P.N. Bhagwati, who spoke for the Bench in a short judgment
following the judgment in Harnam case1, again held that the appellant Raisul
was below 18 years of age at the time of commission of the offence and
therefore death sentence should not have been imposed on him.

4. The
learned counsel for the petitioner, in the instant case, submitted that the age
of the accused is one of the mitigating circumstances and that if the accused
is young he shall not be sentenced to death. In this context the learned
counsel also placed reliance on the judgments of this Court in Bachan Singh v.
State of Punjab3 and Shankar @ Gauri Shankar v. State Of T.N.4 It may be
mentioned here that in Bachan Singh case3, a Constitution Bench of this Court
mentioned some aggravating circumstances warranting the imposition of death
sentence and also mentioned some mitigating circumstances and age of the
accused was mentioned to be one such mitigating circumstance. It was also
observed by this Court that: (SCC p. 75 1, para 209) "There are numerous
other circumstances justifying the passing of the lighter sentence; as there
are countervailing circumstances of aggravation. 'We cannot obviously feed into
a judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society.' " In Machhi Singh
v. State of Punjab5, a Bench of three Judges of this Court having noted the
principles laid down in Bachan Singh case3 observed thus: (SCC p. 489, paras
39, 40) 1 (1976) 1 SCC 163 1975 SCC (Cri) 794 2 (1976) 4 SCC 301 1976 SCC (Cri)
613 3 (1980) 2 SCC 684: 1980 SCC (Cri) 580 4 (1994) 4 SCC 478 : 1994 SCC (Cri)
1252: JT (1994) 3 SC 54 5 (1983) 3 SCC 470: 1983 SCC (Cri) 681 203 "In
order to apply these guidelines inter alia the following questions may be asked
and answered:

(a) Is
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence? (b) Are the circumstances
of the crime such that there is no alternative but to impose death sentence
even after according maximum weightage to the mitigating circumstances which
speak in favour of the offender? If upon taking an overall global view of all
the circumstances in the light of the aforesaid proposition and taking into
account the answers to the questions posed hereinabove, the circumstances of
the case are such that death sentence is warranted, the court would proceed to
do so." In Allauddin Mian v. State of Bihar6 this Court after referring to
Bachan Singh case3 observed thus: (SCC p. 22, para 12) "That is why this
Court in Bachan Singh case3 observed that when the question of choice of
sentence is under consideration the Court must not only took to the crime and
the victim but also the circumstances of the criminal and the impact of the
crime on the community."

5.
Neither in Bachan Singh case3 decided by a Constitution Bench nor in Machhi
Singh case5 nor in Allauddin Mian case6, which are later in point of time,
there is any reference to Harnam case1 or Raisul case2 nor is there any
indication in those three later cases that a person aged about 18 years of age
on the date of commission of the offence should under no circumstances be
sentenced to death. We are only referring to this aspect to show that there is
no inflexible rule that a criminal aged about 17 or 18 years should never be
sentenced to death irrespective of other circumstances, however aggravating
they may be.

6.
Learned counsel for the petitioner, however, submitted that the view taken in Harnam
case1 or Raisul case2 certainly comes to the rescue of the petitioner who was
aged only about 17 years at the time of commission of the offence. Assuming for
argument sake that this Court in these two cases has laid down that the accused
who is under 18 years of age should not be sentenced to death, still the
important question to be considered in this case is whether the petitioner was
aged only 17 years on the date of commission of the offence as is being
claimed. The date of the occurrence in this case was 4-8-1987. The accused- petitioner when examined under Section
313 CrPC on 26-8-1992 gave his age to be about 22 years.
Relying on this, the learned counsel submitted that the age of the petitioner
on 4-8-1987 i.e. the date of commission of the offence,
was only about 17 years and therefore death sentence should not have been
imposed. The trial court after having convicted the petitioner under Sections
302 and 394 IPC examined the accused on the next day on the point of sentence
after explaining the sum 6 (1989) 3 SCC 5: (1989 SCC (Cri) 490: AIR 1989 SC
1456 204 and substance of the reasoning of its judgment. The accused stated
that justice has not been done to him and that considering his young age, the
court should show him sympathy. The learned trial Judge also heard the advocate
for the accused on the point of sentence who stated that when the offence was
committed, the accused was of 17 years of age. The public prosecutor contended
that the accused was not 17 years of age at the time of commission of offence
placing reliance on a true copy of the school leaving certificate of the
accused in which his date of birth was mentioned as 1-5-1967. The learned trial Judge held that the accused was not of
17 years of age relying on the said certificate. It is very pertinent to note
that nobody questioned the authenticity of the said certificate. The learned
trial Judge after elaborate discussion on the question of sentence and also on
the question of age ultimately held that this is a case where death sentence
alone would meet the ends of justice. Before the High Court, on question of
sentence, the learned counsel for the accused urged that the accused was a
young man of about 20 years of age. The High Court, however, having taken all
the circumstances and findings of the court below into consideration, by its
judgment dated 26-10-1993 dismissed the appeal and confirmed
the death sentence. We are unable to understand as to how the petitioner who
gave his age as 22 years on 26-8-1992 when
examined under Section 313 CrPC could be of 20 years of age in the year 1993
when the High Court heard the appeal. Likewise in the special leave petition
filed in this Court on 27-1-1994 the age of the petitioner is given
as 20 years. Strangely in the review petition dated 22-8-1994 sent by the convicted accused from jail, which is also
attested by the Jail Superintendent, he has given his age as 25 years. If one
goes by this age, then he would have almost completed 18 years on the date of
commission of the offence. We are only pointing out these aspects only to show
that the age as such given by the accused or by his advocates at various stages
differently is of no consequence and cannot be given any weight. Even before
the High Court, the authenticity of the date of birth of the appellant as given
in the school leaving certificate has not been questioned. Consequently the
statement of the accused regarding his age cannot be the criteria to hold that
he was below 18 years of age on the date of commission of the offence. Learned
counsel for the petitioner, however, submitted that the accused has not been
questioned separately with reference to the date of birth given in the school
leaving certificate and therefore that cannot be acted upon. We see no force in
this submission. It is only after the conclusion of the trial and after
rendering the judgment, the accused as per the provisions of CrPC was
questioned in the matter of awarding of sentence. When there was a vague
statement regarding age, the prosecution produced the school leaving
certificate and the same was placed on record and the authenticity of the same
has never been in doubt. Learned counsel, however, further submitted that the
accused can be medically examined at this stage.

Under
the above circumstances, we do not think that this exercise has to be
undertaken by this Court at this stage when the authenticity of the school
leaving certificate has never been in doubt. The date of birth given in the
said certificate is 1-5-1967 and the petitioner was aged more
than 20 years 205 on the date of commission of the offence. Therefore the
petitioner's case does not come within the principle laid down in Harnam case1
which has been followed in Raisul case2.

7.
Having given our earnest consideration to the questions raised, we see
absolutely no grounds to reduce the sentence to imprisonment for life on the
grounds urged by the learned counsel. Accordingly the review petitions are
dismissed.